The concept and interest in upskirt is not new, though the term is more recent. For example, looking up a woman's skirt was depicted in the 1767 painting The Swing by Jean-Honoré Fragonard. In "polite society", looking up a lady's skirt was regarded as impolite or rude. In less polite society, looking up a lady's skirt or her lifting up the skirt or otherwise exposing her underwear was regarded as bawdy, as in the case of cabaret dances such as the can-can or in the case of entertainment involving the raising of a dancer's dress by her spinning rapidly. By the polite society, such behaviour was widely judged as indecent.

The sudden popularity in the 1960s of the miniskirt brought the concept out onto the streets, and was viewed by many as mass exhibitionism. One commentator in the 1960s said, "In European countries ... they ban mini-skirts in the streets and say they're an invitation to rape...."[1]

Many women, on the other hand, viewed the new style as rebellion against previous clothing styles and as women's liberation of their own bodies. For the first time many women felt comfortable exposing their thighs, whether on the beach in a swimsuit or in street wear, and were even relaxed when in some situations their underwear would be visible.

Some upskirt and downblouse images originate as innocent fun images which are made with the knowledge and lack of objection of the females affected. However, some of these images can finish up being more widely distributed or being posted onto the Internet without the knowledge and consent of the subject, for example when a relationship breaks up.

Some upskirt and downblouse photos and videos are made specifically to upload onto the Internet, where many viewers seek such images taken surreptitiously (and presumably without the subject's consent). Such photographs are common on fetish and pornographic websites, as well as on video sharing sites such as YouTube.

Attitudes hardened with the very widespread availability and use of digital photographic and video technology, most recently camera phones.[2][3][4] Such technology was also being used to record upskirt and downblouse images for uploading onto the internet. Specialist websites came into existence where people could share such images, and terms such as "upskirt", "downblouse" and "nipple dress" (i.e., when an erect nipple is evident through the material of a woman's dress) came into use. Of particular concern were images of minors and of people who could be identified. Celebrities were popular victims of such efforts. Issues of privacy and reputation began to be raised.

The creation and viewing of this type of image came increasingly to be described as forms of voyeurism and pornography. This was not that most of such images were sexual in nature, with most of them being quite innocent by themselves, but because of their association with the nature of the website on which they were posted and because of the size of the collections.[5]

Upskirt photos can be made in a variety of situations, such as when a woman is ascending stairs or getting out of a car or just sitting on a park bench; and downblouse photos can similarly be made in many innocent situations.[clarification needed]

In 2010, an elderly man had his camera confiscated and was fined 12 day-fines for the act of public obscenity (which was thought to be the closest match in the criminal code), having taken dozens of upskirt photos in a shopping centre in Turku.[7]

In India, under section 66E, of the Information Technology Act, "Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh (200,000) rupees, or with both". The words "private area" mean the naked or undergarment-clad genitals, pubic area, buttocks or female breast. "under circumstances violating privacy" means circumstances in which a person can have a reasonable expectation that- any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

In Japan, hidden-camera photography itself is not against the law as of 2002. However, distributing such photos publicly may break the law. Camera phones sold in Japan generally make an audible noise when taking a picture, making the person more likely to notice if clandestine upskirt photos are being taken without consent. However, there are also apps that circumvent this by making the camera silent.[8]

In New Zealand it is illegal to make a visual recording of a person's intimate parts in any setting in which the person has a "reasonable expectation of privacy". This includes public and private settings. It is also illegal to possess or distribute such images.[9]

The UK has no specific ban on taking such photos. Because it takes place in public, it is outside the scope of the offence of voyeurism under the Sexual Offences Act 2003.[10] Prosecutions have been successful however under the common law offence of Outraging Public Decency.[11]

In the absence of specific legislation, upskirt photography and videotaping is not in itself illegal in the United States.[2] The United States enacted the Video Voyeurism Prevention Act of 2004 to punish those who intentionally make an image of an individual's private areas without consent, when the person knew the subject had an expectation of privacy.[12]

A 2005 Illinois law made it a crime to videotape or transmit upskirt videos of other people without their consent. A 2014 Chicago ordinance made the crime punishable by a $500 fine.[14]

In March 2014, Massachusetts Supreme Judicial Court overruled a lower court upskirt ruling because the women photographed were not nude or partially nude, saying that existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but it does not protect clothed people in public areas.[15] A law was then passed in Massachusetts to ban the practice.[16]

In September 2014 the Texas Court of Criminal Appeals voided the state's statute against "improper photography or visual recording" including "upskirt" photos, saying its wording was overly broad. The court's opinion stated: “Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the First Amendment was designed to guard against.”[17][18]

^"Upskirting to become a crime". smh.com.au. The Sydney Morning Herald. 28 July 2006. Retrieved 10 June 2007. Voyeurs who secretly take pictures up women's skirts or down their blouses will face a crackdown under draft uniform national laws criminalizing the practice.